red light at the time of the two whistles. It two short and distinct blasts of his steamseems clear enough to me that the Vander- whistle, which the pilot of the other steamer bilt's pilot violated the established rules for shall answer promptly by two similar blasts navigation in such cases; and, because of of his steam-whistle; and they shall pass to that violation, the vessel in his charge must the left or on the starboard side of each be deemed, as matter of law, to have contrib-other.” Rule 3. “If, when steamers are aputed to the occurrence complained of. AC- proaching each other, the pilot of either vescording to his statements, he was ignorant of sel fails to understand the course or intention what the distant light was, and he knew of the other, whether from signals being nothing of the other vessel's course; but, given or answered erroneously or from other supposing it was a tow, he laid his course causes, the pilot so in doubt shall immedisomewhat to the eastward, to pass by. Then ately signify the same by giving several short he heard the signal from her, of one whistle, and rapid blasts of the steam-whistle; and, to go to the right of each other; and, know- if the vessels shall have approached within ing of the approach of a steamer on his half a mile of each other, both shall be imcourse, he at first agreed to her pilot's signal mediately slowed to a speed barely sufficient by giving the appropriate reply; but in a few for steerage-way, until the proper signals seconds he gave the signal, by two whistles, are given, answered, and understood, or unfor each to go to the left of the other, and, til the vessels shall have passed each other." receiving an assent to that, at once hard We must assume that, from the absence of ported his vessel, sheering her more sharply central range lights and the inability to see to the eastward. He says he could not at the colored lights on the Yosemite, the Vanfirst see the yacht's colored lights, and there- derbilt could not determine what she was, fore, and in the absence of her central range or what her course; and equally must we aslights, could not tell her course; but he did sume that to the Yosemite the Vanderbilt have the one whistle to guide him in the and her course were known by the lights she first place, and he did see her red or port carried. Therefore, when the pilot of the light when the two whistles were given, and yacht gave one blast of the whistle, he did so thus knew her port or left side was towards with all the knowledge possible in such cases, him, and that she was approaching him and was first in deciding upon the course obliquely. Now, what his duty was, under of passing to the right or the port side of the the circumstances, is made clear by reference other. Under rule 1, this decision, having to the rules and regulations for the govern- been assented to, determined a course for ment of pilots navigating rivers, etc., which both vessels. In subsequently deciding to were adopted by the board of supervising in- take the opposite course, that is, to go to the spectors, as authorized by the act of con- left or the starboard side of the other, the gress, "to provide for the better security of Vanderbilt's pilot look the risk of his judglife on board of vessels propelled in whole or ment being right, or better. He must have a part by steam, and for other purposes," ap- known that to the stranger vessel his position proved February 28, 1871, and the acts and course were indicated by his vessel's amendatory thereof. Those rules are con- light, while he himself was, if he is to be betrolling in all cases of navigation of steam-lieved, ignorant of the yacht's. Now, was vessels, and have the force and effect of stat- not his duty, under the circumstances, deutes, where they do not conflict with any fined unmistakably by the rules by which he special rule, duly made by local authority, was to be governed ? He could do one of two relative to inland or river navigation. Their things. He could, and, as I think, should, violation should be chargeable as a fault; for have adhered to his agreement with the obedience to them is not only necessary, but yacht's master to go the right of each other. insures safety. We understand the defend-Or, under rule 3, if he failed to understand ant's counsel to concede the binding force of the course or intention of the yacht, “whether these rules. I will cite here two of those from signals being given or answered errorules which are applicable, in my opinion, to neously, or from other causes,” he could have the state of facts: Rule 1: “When steamers given several short and rapid blasts of the are approaching each other head and head,' whistle, and slowed down until the proper or nearly so, it shall be the duty of each signals were given or understood, or the vessteamer to pass to the right or port side of sels had passed. Under the state of facts, the other; and the pilot of either steamer the Vanderbilt's pilot had no right to give may be first in determining to pursue this the two signals after he had assented to the course, and thereupon shall give, as a signal course indicated by one whistle, and when he of his intention, one short and distinct blast was as yet in the dark as to any other indiof his steam-whistle, which the pilot of the cation of the yacht's existence or course. It other steamer shall answer promptly by a may well be that the yacht should not have similar blast of his steam-whistle; and there- answered the two whistles, and thus assented upon such steamers shall pass to the right or to the change in the course; but that cannot port side of each other. But if the course of affect the Vanderbilt's responsibility for the such steamers is so far on the starboard of change. The Vanderbilt, in subsequently each other as not to be considered by pilots giving the two blasts of the whistle, thereby as meeting .head and head,' or nearly so, the notified the approaching vessel that she (the pilot so first deciding shall immediately give Vanderbilt) could keep out of the way by

going to the left, and would do so, if the the yacht was in fault; but under the third other would agree to it; and the yacht's as- rule, which we have quoted, if the pilot was senting blasts simply meant that it agreed to bewildered, and failed to understand the other that, the risk to be the Vanderbilt's. If the vessel's course or intention, he should have Vanderbilt's pilot had obeyed the rule of the signified to that effect by the repeated short road, as laid down by the statutes of the state blasts, and have slowed down, or stopped. and of the United States, and adhered to his The Vanderbilt's pilot forgot or disregarded agreement with the approaching vessel, and the rules, and his mistake must be regarded had kept to the right, either the collision would as having contributed to the occurrence. I not have happened, or, if it had happened, think the judgment and order denying a new the Vanderbilt would not have been in fault. trial should be reversed, and a new trial orIn the absence of the expected and usual sig- dered; costs to abide the event. nals, a pilot should not be governed by impressions. If, in the exercise of discretion,

(10 Ind. 590) he departs from the rules in such cases, in BARR et al. v. VAN ALSTINE. the absence of any necessity, and a collision

(Supreme Court of Indiana. Nov. 6, 1889.) is enabled to occur, he does so at his peril, and

MORTGAGES-REDEMPTION-RIGHTS OF WIDOW. at the risk of charging his vessel with a lia

1. Under Rev. St. Ind. 1881, $ 2491, which is bility. If it is claimed that if the Vander- section 27 of the statute of descents, giving the bilt's pilot compitted a mistake it was one widow one-third of the lands of which her husband in extreinis, it should appear that his faulty was seised in fee during their marriage, and of maneuver was caused by the error of the other death, she may redeem from a foreclosure, had in

lands in which he had an equitable interest at his vessel. The Elizabeth Jones, 112 U. S. 514, his life-time, to which she was not a party, of a 5 Sup. Ct. Rep. 468. But there was no such mortgage given by him alone for the purchase producing cause in this case; for the Vander- price of land.

2. An action by the widow to redeem from bilt's pilot says he could only make out the such foreclosure is not, under Rev. St. Ind. $ 294, one high light before he heard the one whis- limiting real actions, barred until 15 years after tle, and only saw the red light, which indi- the death of the husband. cated her port side was towards him, about in such case are not necessary.

3. Demand and tender before action to redeem the time of the two whistles. The manner 4. The decree in such case should be for the in which the yacht cut through the Vander- sale of the two-thirds to pay any balance of the bilt's bow presents to my mind some evidence mortgage debt found due the purchaser under the

foreclosure, after deducting rents and profits from that the yacht was attempting to comply with the death of the husband, but such purchaser canthe Vanderbilt's signal to pass to the left. not object to an erroneous decree for the sale of The evidence shows that the yacht's bow the widow's one-third. struck the Vanderbilt forward of her star

Appeal from circuit court, Allen county; board gangway, cut through, and came out A. A. CHAPIN, Judge. about the middle of her port gangway. The J. W. Wilson and W. G. Colerick, for apVanderbilt's course was at the time sharp to pellants. the eastward. If the yacht had kept on pointing to the eastward, with the object of BERKSHIRE, J. This was an action brought passing to the right of the Vanderbilt, they by the appellee against the appellants to rewould have met on oblique courses, and the deem from a sheriff's sale. The cause was yacht would have cut through the other ves- put at issue, and trial and final judgment sel on a line which would have taken her to rendered for the appellee. The errors asa point forward of the Vanderbilt's port gang- signed are: “(1) The court erred in overrulway. But it is evident, from the fact of the ing the appellants' demurrer to the first and line of the cutting through terminating at a second paragraphs of the appellee's compoint in the middle of the port gangway, that plaint, and each of them. (2) The court the yacht's pilot bad already ported his ves- erred in sustaining the appellee's demurrer to sel's bow, and attempted to comply with the the second, fourth, and fifth paragraphs of changed signal. In the case of The City of appellants' answer, and each of them. (3) Ilartford, 11 Blatchf. 72, after that vessel The court erred in its conclusions of law on had blown one whistle, for each to go to the the special findings of facts. (4) The court right, the approaching vessel, the Unit, blew erred in overruling the appellants' motion two, for each to go to the left, and the City to state other and different conclusions of of Hartford assented to the changed course. law on the special findings of facts. (5) Judge WOODRUFF in his opinion agreed with The court erred in overruling the appellants' the court below, that she ought not to have motion for a judgment in their favor on the done so; that she ought to have kept off, or special findings of facts. (6) The court erred stopped. He held that “the maneuver was in overruling the appellants' motion to disfatal. In the most favorable view for the miss the plaintiff's case after the announceUnit, the approaching vessel, it was an error ment by the court of what facts were fornd in which both concurred." He decided that by the evidence adduced on the trial. '7) "the conclusion seems inevitable that both The court erred in rendering judgment in were in fault."

favor of the appellee on the special findings It is suggested in the general term opinion of facts.” We understand from the record that the pilot of the Vanderbilt was bewil that on the 220 day of February, 1864, one dered. It may be. It is not disputed that George W. Ewing, then in life, was the

owner in fee-simple of lots 5, 6, and 7, in viving wife is entitled, except as in section 17 Ewing's subdivision of lot 65, in the original excepted, to one-third of all the real estate of plat of the city of Fort Wayne, Ind., and on which her husband may have been seised in that day conveyed the same by warranty deed fee-simple at any time during the marriage, to one William Van Alstine for the sum of and in the conveyance of which she may not $1,834, and took his notes for the purchase have joined in due form of law, and also of money, secured by a mortgage; that the all lands in which her husband had an equitaterms of said mortgage were such that the ble interest at the time of his death: provided, notes all became due February 23, 1865; that that if the husband shall have left a will the said George W. Ewing died testate prior the wife may elect to take under the will into November 1, 1866; that on that day his stead of this or the foregoing provisions." executor brought suit in the Allen circuit Under this statutory provision, one-third of court to foreclose the mortgage, and on the

ortgage, and on the the said real estate passed to the appelle 12th day of January, 1867, obtained a judg- by virtue of her marital rights, subject to the ment for $2,021.75, and a decree of foreclos- said mortgage indebtedness. May v. Fletchure; that on the 13th day of March, in the er, 40 Ind. 475; Bowen v. Preston, 48 Ind. same year, an order of sale issued upon the 367; Brenner v. Quick, 88 Ind. 546. Not judgment and decree to the sheriff of Ailen having been made a party to the action, she county, who, after advertising the mort-, was not affected by the decree of foreclosure. gaged premises for sale, on the 13th day of May v. Fletcher, supra; Gordon v. Lee, 102 July in the same year, sold the same for the Ind. 125, 1 N E. Rep. 290; Catt-rlin v. full amount of the judgment to the said ex- Armstrong, 101 Ind. 265; Wilt. Mortg. For. ecutor; that on the 4th day of September, 160. Until the death of the husband of the 1868, there having been no redemption from appellee she had no claim, legal or equitable, said sale, the said sheriff executed to said upon or to the land. Insurance Co. v. Newpurchaser a deed for said real estate; that man, ante, 428,(October 31, 1889,) and authoron the 17th day of March, 1873, the said ex-ities cited. Had her husband survived her, ecutor sold and conveyed said real estate to the purchaser at the sheriff's sale would have the male appellant for the sum of $4,500, held the title to said real estate free from any who then and there paid the purchase-price; right of redemption. Paulus v. Lalta, 93 that he, at said date, entered into the posses- Ind. 34; McCormack v. Hunter, 50 Ind. 186; sion of said lots, and has been in possession Grissom v. Moore, 106 Ind. 296, 6 N. E. Rep. since his purchase, claiming to be the owner: 629. So soon as the husband of the appellee that the appellee was the wife of the said died, by virtue of the said statute the title to William Van Alstine when he made said pur- one-third of the said real estate vested in her, chase, and continued to be his first and only subject to the said mortgage indebtedness, and wife until his decease, on the 10th day of then, and not until then, her right to redeem September, 1873, and resided during all the came into existence. Brenner v. Quick, said time in the said city of Fort Wayne; supra; Wilt. Mortg. For. 162. that she did not join in said mortgage, nor

As there is no other section of the statute was she a party to said action of foreclosure, of limitations applicable to actions to redeem nor has she ever made any conveyance of her real estate, section 294, Rev. St. 1881, govinterest in said lots, either as the wife or erns, and the appellee had 15 years from the widow of her said husband; that when her death of her husband in which to bring her husband died he left an estate worth less action. As the action was commenced withthan $10,000; that the said appellant, when in 15 years, it was not barred by the statute he made his purchase, had no knowledge that of limitations. the appellee claimed any interest in said real The answer which is pleaded as an estopestate; that the appellee made no demand of pel in pais is entirely barren of such facts as the appellant before bringing the action, nor work a verbal estoppel. It is so clearly bad did she, or any one for her, tender or pay to that we do not care to set it out in this opinthe appellant all or any part of said mortgage ion, or to refer to it more at length. debt before instituting this action; that this The appellee was not bound, as a condition action was commenced November 8, 1886; precedent to the bringing of her action to rethat the said executor paid taxes upon said deem, to make a demand or a tender. Childs real estate from the time he received his deed v. Childs, 10 Ohio St. 339; Bradley v. Snyder, until he conveyed to the said appellant, who supra; Clark v. Reyburn, 8 Wall. 321. has paid the taxes since, together with cer In the case under consideration, as against tain street assessments.

the appellee the appellant occupied the posiUnder the facts, as stated, the appellee had. tion of a mortgagee in possession. He was the right to redeem from said sale upon the chargeable with the rents and profits from the death of her husband. May v. Fletcher, 40 date of the death of the husband of the appelInd. 575. This case, overrules the case of lee, and she was chargeable with the mortFletcher v. Holmes, 32 Ind. 497, and has gage debt and interest thereon at 6 per cent. since been foilowed by later decisions of this per annum, and likewise for taxes paid, tocourt. Wilt. Mortg. For. 161, and cases gether with the cost of improvement made by cited; Bralley v. Snyder, 14 Ill. 263. Sec- the appellant and his grantor. Hosford y. tion 2491, Rev. St. 1881, being section 27 of Johnson, 74 Ind. 479; Ğage v. Brewster, 31 the statute of descents, reads thus: “A sur-N. Y. 218; Wilt. Mortg. For. 191-199;

Johnson v. Harmon, 19 Iowa, 56; Button MITCHELL, J. The facts, briefly stated, hole Co. v. Association, 61 Iowa, 464;'Bradley are that William S. Woods and his wife, Marv. Snyder, supra. Proceeding upon this basis, tha A., joined in a mortgage conveying certhe court should have made an adjustment, tain real estate owned by the former to secure and whatever, if anything, was found due to certain debts of the husband. Woods subsethe appellant, a decree should have been ren- quently died, leaving his widow and three childered for the sale of the two-thirds of the real dren as his surviving heirs, and leaving the estate held by him to pay the same, and, in debts secured by the mortgage above mencase of a failure to realize a sum sufficient to tioned unpaid. The administrators of his espay the same, then for the sale of the appel. I tate applied to the proper probate court for an lee's one-third. Grable v. McCullogh, 27 Ind. order to sell the mortgaged real estate, for the 472; McCord v. Wright, 97 Ind. 34; Bunch purpose of making assets to pay the debts sev. Grave, 111 Ind. 351, 12 N. E. Rep. 514. cured by the mortgage. The widow and chilIn case nothing was found due on the mort-dren were made parties to the proceeding. gage debt to the appellant, then the court The former appeared, and in writing waived should have so decreed, and that the appellee the publication and posting of notice required was the owner of one undivided one-third of by the statute, and also assented to the sale said real estate, free from incumbrance, and of the whole of the real estate mentioned in quieted her title; but on the other land, if the the petition, upon an alleged agreement that court found that there was anything due on two-thirds of the proceeds should be applied the mortgage debt, the amount should have to the payment of the mortgage debt, and onebeen a ljudyed, and a decree renılered for the third thereof paid to her. The land was sold sale of the whole of said real estate, but that in pursuance of an order of the probate court, the two-thirds held by the appellant be first and the administrators, in pursuance of the sold, and, if sold for a sum sufficient, then sale, made a conveyance of the whole of the that the appellee's one-third be protected. several tracts sold to the purchaser, who went There is nothing in the conclusion to which into possession under his deed. Subsequentwe have arrived in conflict with Bunch v. ly the widow died, and this suit was instiGrave, supra. That case and the one under tuted by her heirs or devisees, who claim the consideration proceeded on different theories undivided one-third of the land which deand rest on different principles. We adhere scended to their mother; their insistence here to the conclusion reached in that case. The being that the order of sale made by the prodecree which was rendered in this case was for bate court was beyond its jurisdiction, and the redemption and sale of the appellee's one- therefore void. That this position is well third of the said real estate, and does not dis- taken, is settled upon authority; and that the turb the two-thirds held by the appellant. It is right of the heirs to assert title to her undierroneous, but the error is not one of which vided one-third of the land is not affected by the appellant can complain, because he is not the in valid order of sale is also established, injured, but benefited, thereby. If the ap- unless their ancestor, through whom they pellee was here complaining of the judgment claim, received the purchase money, or in of the court, we would probably be required some way constituted the administrators who to reverse the judgment, but, as she is not, made the conveyance her agents, so that she the judgment must be affirmed. Judgment became bound by their acts, or estopped to affirmed, with costs.

assert her title. Pepper v. Zahnsinger, 94

Ind. 88, and cases cited. Merely signing a (121 Ind. 56) ROBERTS 0. LINDLEY et al.

paper, in which she manifested her assent to

an order for the sale of the whole of the sey(Supreme Court of Indiana. Nov. 7, 1889.)

eral tracts, including her interest, would not ADMINISTRATOR'S SALES — CONSENT OF WIDOW-confer jurisdiction over the subject matter on

ESTOPPEL. 1. An administrator's sale of land of a decedent stitute the administrators her agents to con

the court, nor would that, without more, conto pay debts, in pursuance of an order of the probate court, on the mere written consent of the vey her title. If, however, she received and widow, by which she waives the publication and retained what was supposed to be her share posting of notice required by Rev. St. Ind. S 2355, of the purchase price, after having assented is invalid, but she and her heirs are estopped to to the order and sale, she, as well as those claim title to her interest, if she received and retained her share of the price.

who stand in her right, would be estopped. 2. Where, on appeal from a judgment for plain

Upon request the court made what purtiffs in an action by the widow's heirs for her in

This terest, it does not appear whether or not the widow ports to be a special finding of facts. received and retained her share of the price, a new special finding, although it covers very many trial will be ordered.

pages, and embraces most of the evidence in Appeal from circuit court, Hancock county the case, cannot be regarded as in any proper M. E. FORKNER, Judge.

sense a special finding. While the applicaAction by Olive F. Lindley and others tion to sell, the proceedings, order, and report against John Roberts. Judgment for plain- of sale, are all set out at full length in the tiffs, and defendant appeals.

special finding, these can only be regarded as New & Jones and L. H. Reynolds, for ap- the land was ever sold by the administrators,

evidence. It is not found as a fact that pellant. Marsh & Cook, for appellees.

116 N. W. 527.

Rev. St. Ind. $ 2355

[ocr errors]

nor does it appear, except by the reports made veyances the appellant only acquired title to to the probate court, which should have no the dry land; that the meandered line around place whatever in the special finding, who the border of such lake constitutes the boundpurchased the land, or whether or not the ary line of appellant's land; and, acting uppurchase money was ever paid, or whether on this theory, the appellee, in the year 1884, the widow ever received any part of it, if procured a survey of the lake within the meany was paid. The facts found, after elim- andered line to be made by the general govinating the evidence, are wholly insufficient ernment, and platted as lots 5 and 6, and such to support any judgment; and, although survey and plat were made by the commisthe motion for a venire de novo is informal, sioner of the general land-office, who is ex ofwe should not hesitate, without any motion, ficio surveyor general of Indiana, and the to order a new trial, to the end that justice same was adopted and approved by the secremight be done. Buchanan v, Milligan, 108 tary of the interior; and also procured a patInd. 433, 9 N. E. Rep. 385; Cottrell v. Nixon, ent to be issued by the United States to the 109 Ind. 378, 10 N. E. Rep. 122. The judg- state of Indiana for the same March 17, 1885. ment is reversed, with costs, with directions The conclusion we have arrived at is that to the court below to sustain the appellant's the owners of lands bordering on non-navimotion for a venire de novo.

gable inland lakes, such as the one described

in this case, when the subdivisions of the (121 Ind. 51)

land are surveyed by running a meander line STONER 0. RICE, State Auditor. between the dry land and the water to ascer(Supreme Court of Indiana. Nov. 8, 1889.)

tain the number of acres of dry land, and RIPARIAN Rights—NON-NAVIGABLE LAKE-ACTION designating such subdivision as a fractional AGAINST STATE.

quarter or a lot, giving the number of acres 1. Where an inland non-navigable lake covers a of dry land, takes the title to all the land portion of a section of land, and the government contained within the subdivision; that is to survey designates the dry land in each subdivision as u fractional subdivision or lot, the purchaser say, he takes as a riparian owner, and his from the government of such lots acquires title to title includes and he owns the land beneath all that portion of the bed of the lake included in the lake far enough beyond the meandered the whole subdivision.

line and water's edge to make out the full the United States brings his action to determine subdivision in which his land is so situated. title against a lessee of the state, the state auditor, As in this case the N. W. 4 of the N. E. 4 is who appears and answers, cannot object that the surveyed and designated as “Lot 1,” the state cannot be sued by a citizen thereof.

purchaser of lot 1 acquires title to all the land Appeal from circuit court, La Porte coun. situate within the boundary line of the said ty; DANIEL NOYES, Judge.

N. W. 4 of the N. E. 4 of said section, as John H. Bradley and L. A. Cole, for ap- the same is platted by the government, and pellant. F. T. Hord, Atty. Gen., for appel- by the survey all the land situate in the N. lee.

of the N. W. 4 of said section was designated

as “Lot 3,” and the purchaser of lot 3 acOLDS, J. The question in this case in- quired title to all the land in said N. of volves the title to the bed of a fresh-water said N. W. & of said section, whether a part lake situated in the N. of section 8, in town- of it be covered with water and constitute a ship 36 N., of range 1 W., in La Porte coun- part of an inland lake, or part of it be swamp; ty. This question arises on the demurrer to and the same is true in regard to the S. 1 of the appellee's answer to the complaint. The the N. W. 1, designated as “Lot 4." The lake is not navigable. The principal part of survey included all the land, and when a porthe lake is situated in the N. W. & of said tion of a subdivision was covered with water section, a small portion extending into the such portion was meandered to determine the N. W. 4 of the N. E. 4 of said section. There amount of dry land, and the meandered line are 39.72 acres of dry land situate in the s. i does not constitute a boundary line. It is of the N. W. 1 of said section, lying to the contended that the riparian owner bordering west and south of said lake, and designated on a non-navigable lake, like a river, takes by the government survey as “Lot 4,” there to the thread or center of the lake. This are 51.33 acres of dry land situate in the N. i rule is impracticable when applied to lakes. of the N. W. 4 of said section, lying to the Suppose the lake to be round, or nearly so, north and west of said lake, and designated with riparian owners, as there would be, on by the government survey as “Lot 3;" and the north, south, east, and west of it, this there are 34.45 acres of dry land in the N. W. rule could not be applied; while the rule we * of the N. E. 4 of said section, lying east of have laid down is practicable, and we think said lake, designated by the government sur- the proper rule to be applied in cases of this vey as “Lot 1.” The appellant owns these character. To hold that the meandered line three lots, viz., lots 1, 3, and 4, deriving his constitutes the boundary would be against title by mesne conveyances from the United the great weight of authority. Indeed, the States prior to 1884, and by virtue of such authorities are almost unanimous against con veyances and ownership claims to own such a doctrine. The weight of recent auand have the title to the land beneath the thorities is to the effect that the owner of water of the lake. On the contrary, it is the bank owns to the center of the body of contended by tbe appellee that by such con-I non-navigable water, at least, whether it be

« ForrigeFortsett »